Opinion
Civil Action No. WMN-98-720
May 26, 2000
MEMORANDUM AND ORDER
This case has been referred to the undersigned for the resolution of discovery disputes pursuant to 28 U.S.C. § 636(b) and Local Rule 301. Plaintiff has sued defendants under 42 U.S.C. § 1983 and Maryland state law for an incident involving the alleged use of excessive force against him on January 18, 1996 while he was an inmate at the Baltimore City Detention Center ("BCDC"). Pending are Plaintiffs' Motion to Compel Response of Non-Party Maryland Department of Public Safety and Correctional Services (the "Department") to Document Subpoenas, Defendants' Opposition, and Plaintiff's Reply. (Paper Nos. 100, 108, and 113). Plaintiff's motion seeks to compel the production of 1) photographs of four of the defendant officers involved in the incident; 2) an August 11, 1999 letter from Commissioner Flanagan to defendant Holeman stating that the Department believed Holeman was not fully cooperating with the investigation of the incident involving plaintiff; 3) eleven documents reflecting past misconduct by several of the defendants; and 4) documents regarding incidents involving the use of excessive force against BCDC inmates in the past ten years. A telephone hearing to discuss plaintiff's motion was held before the undersigned on May 17, 2000.
For the reasons stated during the hearing, IT IS this _____ day of May, 2000 ORDERED that:
1. Plaintiffs' Motion to Compel (Paper No. 100):
Defendants argue, as a preliminary matter, that plaintiff's motion to compel should be denied as untimely. For the reasons discussed during the hearing, the Court rejects this procedural argument.
a. is hereby GRANTED as it pertains to compelling production of photographs of defendants Billups, Gibbs, Durant-Bey and Joseph Green. Defendants have not raised any objection to the production of these photographs, and, indeed, defense counsel previously promised to provide them to the plaintiff. Accordingly, the Department is ordered to produce photographs of these four defendants to the plaintiff within fourteen (14) days of this Order.
b. is hereby GRANTED as it pertains to compelling production of the August 11, 1999 letter from Commissioner Flanagan to defendant Holeman. Defendants argue that this letter is protected from discovery by the attorney-client privilege and work product doctrine because, at the time that it was written, the state Attorney General's office was revisiting its decision as to whether to continue its representation of defendant Holeman. For the reasons stated during the hearing, defendants have failed to establish that the letter is protected by either the attorney-client privilege or the work product doctrine. Moreover, even if these privileges were applicable, they have been waived. The August 11th letter was indiscriminately mingled with other nonprivileged documents, left in defendant Holeman's personnel file, and thereafter disclosed, albeit inadvertently, to plaintiff's counsel in the course of discovery. See McCafferty's, Inc. v. The Bank of Glen Burnie, 179 F.R.D. 163, 167-68 (D.Md. 1998) (discussing these factors as relevant to court's determination of attorney-client waiver); see also In re John Doe v. United States, 662 F.2d 1073, 1081 (4th Cir. 1981) (work product disclosed under circumstances in which attorney cannot reasonably expect to limit its future use constitutes waiver); Edna S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 405 (3d Ed. 1997) (disclosure of work product to adversary almost invariably seen as waiver). Because the Court finds that the letter is not protected by the attorney-client privilege or the work product doctrine (even assuming it once was) and, is clearly relevant to this lawsuit, the Department is ordered to produce the letter to plaintiff within fourteen (14) days of this Order.
c. is hereby GRANTED as it pertains to compelling production of the eleven documents reflecting past misconduct by several of the defendants. These documents were the subject of a subpoena that plaintiff served on the Department on June 10, 1999. (Paper No. 100, Ex. B). In response to the subpoena, plaintiff's counsel was permitted to inspect and tag for copying all records purportedly responsive to the subpoena. Defendants now refuse to produce eleven of the documents inspected and tagged by plaintiff's counsel on the grounds that they are not relevant to this lawsuit and would not be admissible at trial. Under Federal Rule of Civil Procedure 26(b), the scope of discovery is broad, and "information sought need not be admissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence." Defendants, acting on their own initiative, submitted the eleven disputed documents for in camera inspection. The Court has not inspected these documents and does not believe that an in camera inspection is necessary in view of defendant's generalized relevance objections. Plaintiff's counsel, on the other hand, has explained in great detail the nature of plaintiff's case and the relevance of the requested documents to plaintiff's theories of liability. For the reasons articulated by plaintiff's counsel during the hearing, the Court concludes that the eleven disputed documents are relevant and should be produced by the Department to plaintiff within fourteen (14) days of this Order.
Under Maryland law, the Attorney General is required to investigate the facts on which an action against a state employee is based in order to determine whether representation of that employee is appropriate. Md. Code Ann., State Gov't § 12-304 et seq. (1999). Information obtained by the Attorney General during the investigation is deemed "confidential and inadmissible as evidence in any legal action or special proceeding." § 12-307. Defendants assert this statutory protection as an additional basis for treating the letter as privileged under both the attorney-client privilege and work product doctrine. The Court, however, does not find that this statute offers any basis for nondisclosure of the document in question.
The Court is returning to defendants the unsolicited documents which were attached as Exhibit B to Defendants' Opposition to Plaintiff's Motion to Compel.
2. Pending further briefing by the parties as ordered below, the Court is reserving decision on Plaintiff's Motion to Compel as it pertains to the production of documents regarding incidents involving the use of excessive force against BCDC inmates in the past ten years. Defendants argue that such documents are irrelevant and that, in any event, plaintiff's counsel was given an opportunity to review these documents but elected not to do so. Plaintiff argues that such documents are relevant to the issue of supervisory liability, see Murray v. Koehler, 734 F. Supp. 605, 606-607 (S.D.N.Y. 1990) (past use of excessive force relevant to issue of supervisor liability under Section 1983 action for subsequent assault by officers on inmate). Plaintiff disputes defendants' contention that he has been given access to all documents regarding the past use of force against BCDC inmates. At the conclusion of the telephone hearing, the Court concluded that, in light of counsels' disputes regarding this issue, additional briefing was necessary for the Court to meaningfully address the issue.
Accordingly, defense counsel is ORDERED:
1) to confer with plaintiff's counsel regarding the current status of production of documents regarding incidents involving the use of excessive force at BCDC in the past ten years, and
2) to file a brief with the Court by May 24, 2000:
a. clearly identifying which documents defendants allege that plaintiff's counsel has been given an opportunity to review; and
b. specifying defendants' remaining objections to plaintiff's request for all documents regarding incidents of excessive force against BCDC inmates in the past ten (10) years. Plaintiff's response thereto, if any, shall be filed by June 1, 2000. Both counsel are directed to cite to pertinent case law.
3. The Clerk of the Court shall mail copies of this Order to counsel of record.